State v. White

164 S.E.2d 36 (1968)

3 N.C. App. 31

STATE of North Carolina v. Thomas E. WHITE.

No. 6825SC261.

Court of Appeals of North Carolina.

November 13, 1968.

*38 T. W. Bruton, Atty. Gen., William W. Melvin, Asst. Atty. Gen., and T. Buie Costen, Raleigh, Staff Atty., for the State.

Lewis E. Waddell, Jr., Newton, for defendant appellant.

CAMPBELL, Judge.

The record on appeal in this case is inadequate in that no exceptions appear in the record or in the transcript and there are no exceptions supporting the assignments of error. The charge of the court is not contained in the record, and there are other deficiencies.

In Docket No. 67-CrD-13604 the date of the violation charged is Monday, the 12th of some month which is illegible. In the year 1967 the month of June was the only month that had a Monday falling on the 12th day. The evidence discloses that whatever offense the defendant committed was on Saturday, 18 November 1967, but there is nothing in the warrant in Docket No. 67-CrD-13604 that connects the defendant with any offense on Saturday, 18 November 1967. It is a rule of universal observance in the administration of criminal law that a defendant must be convicted, if convicted at all, of the particular offense charged. The allegation and proof must correspond. State v. Watson, 272 N.C. 526, 158 S.E.2d 334; State v. Sossamon, 259 N.C. 374, 130 S.E.2d 638. We hold that there is a fatal variance between the charge contained in the warrant in Docket No. 67-CrD-13604 and the evidence. This Court ex mero motu vacates the judgment *39 entered in Docket No. 67-CrD-13604. If a uniform traffic ticket is going to be used, care must be exercised in filling it out so that it accurately charges the offense, and the defendant will know with what he is charged.

In the other case, Docket No. 67-CrD-12734, the defendant was found guilty by the jury of reckless driving, no registration plates, and inspection violation. The trial court dismissed the charge of no registration plates. On the other two charges, as stated above, the defendant was sentenced to six months in the common jail of Catawba County to be assigned to work under the supervision of the State Department of Correction.

The defendant contends that there was error in the trial court in failing to appoint counsel to represent him. We find no merit in this contention.

"We do not conceive it to be the absolute right of a defendant charged with a misdemeanor, petty or otherwise, to have court-appointed and-paid counsel. * * * The Statute * * * leaves the matter to the sound discretion of the presiding judge. Some misdemeanors and some circumstances might justify the appointment of counsel, but this is not true in all misdemeanors." State v. Bennett, 266 N.C. 755, 147 S.E.2d 237; State v. Morris, 2 N.C.App. 262, 163 S.E.2d 108.

The defendant further contends that there was error in the trial court in allowing the following testimony of Deputy Sheriff Yoder:

"We called the ambulance and taken Thomas White to the hospital. And I immediately went on down to the hospital and Chief Warren stayed with the car. And he [defendant] was in the emergency room. I talked with Dr. Jones which was waiting on him; and Dr. Jones asked him in my presence what he had been drinking. He said he had drank a fifth of liquor that day."

No objection was entered to the admission of this statement. An objection is a prerequisite. State v. Gray, 268 N.C. 69, 150 S.E.2d 1; State v. Stubbs, 266 N.C. 274, 145 S.E.2d 896. There was no "incustody interrogation" by the officer, therefore this evidence was clearly outside the scope of the Miranda ruling. State v. Meadows, 272 N.C. 327, 158 S.E.2d 638.

This assignment of error is overruled.

The defendant also attempts to assign error to the judge's charge. There was no exception to any portion of the charge, therefore, this assignment of error is ineffectual. Nevertheless, we reviewed the charge of the court and do not find any prejudicial error to the defendant contained therein.

For fatal variance between the warrant and the evidence in Case No. 67-CrD-13604, sentence vacated.

In Case No. 67-CrD-12734, judgment affirmed.

MALLARD, C. J., and MORRIS, J., concur.